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Saturday, 28 July 2012

On the hunt for Stéphane Roy and Riadh Ben Aïssa

Canadian courts addressing the class action suits against
SNC-Lavalin have had a hard time serving court documents to two former executives,
Stéphane Roy and Riadh Ben Aïssa.

For Mr. Roy, the difficulty has been in locating him within
Canada’s borders. For Mr. Aïssa, the challenge is that he is in prison in
Switzerland. Central to Mr. Aïssa’s case is the Hague Service
Convention of 1965, which covers the international delivery of court process
documents.

Riadh Ben Aïssa

If a document can’t be served in person, then a court can
resort to “substituted service”, which is an alternative means of notification.
Former SNC executives Roy and Aïssa’s circumstances have made things difficult:
Roy because he has been lying low, presumably in Quebec; and Aïssa because he
is in jail in Switzerland where he is facing allegations of corruption, fraud
and money laundering related to SNC-Lavalin’s alleged corrupt practices in
North Africa.

Attempts have been made, without success, to serve documents
personally on both Aïssa and Roy. On March 23, 2012, a bailiff attempted to serve
Roy and Aïssa at SNC-Lavalin’s headquarters in Montreal. That would seem to
have been a formality, as neither was employed by SNC-Lavalin at the time,
having lost their jobs in February 2012.

Searches of public documents and databases were then made to
ascertain Mr. Roy’s residential address.
Those searches indicated that he lived in Ile
Perrot, an island west of Montreal. Process servers were sent to two
addresses, but the attempts were unsuccessful.

Again apparently as a legal formality, an attempt was then
made to serve Mr. Aïssa at an address in Montreal. Unsurprisingly, this also
failed, as he was likely out of the country at the time, and was arrested in Switzerland in late April.

To solve this problem, orders were obtained from the Superior
Court in Quebec for substituted service (i.e. alternative to delivering
documents directly to an individual). Specific to Roy, on May 26, 2012 notices
were published in The Gazette (in English), Le Soleil (in French) and Le
Journal de Montréal (in French).

Mr. Roy’s criminal and civil lawyers were also contacted. They, however, do not have instructions from
Mr. Roy to accept service.

For Mr. Aïssa, in order to comply with jurisdictional
requirements under the Hague Convention, the manner of service must be through
Swiss authorities, with the rules nonetheless being similar to those within
Canada. In effect, if the Hague Convention is interpreted in a way that upholds
Canada’s international obligations, then it does not oust the jurisdiction of the
Canadian court to order substituted service.

So, with that green light the plaintiffs in another lawsuit
against SNC-Lavalin, the “Drywall Fund Action”, are attempting to serve Mr.
Aïssa in Switzerland in accordance with the formal requirements under the Hague
Convention.

However, this may take some time. The statement of claim is
being translated into German for the purposes of service under the Convention.
Once translation is complete, it is likely to take a few months to finish the
process, with no guarantee of success.

Another strategy employed by the courts has been to go
through Mr. Aïssa’s Ottawa-based lawyer, who is able to communicate with Mr.
Aïssa through a Swiss lawyer. However, as with Mr. Roy, Mr. Aïssa has advised his
lawyer that he does not have authority to accept service.

This is all fall-out from alleged misrepresentations contained in
disclosure documents issued by SNC-Lavalin, which was exposed in an
investigation by the Audit Committee of the company’s Board of Directors into
contracts under which US$56 million were paid to unknown agents.

Mr. Roy was also the lead contact for the Canadian Cynthia
Vanier, whom he hired for a fact-finding mission to Libya in July, 2012. Ms.
Vanier is in jail in Chetumal, Mexico, facing charges that she was part of a
complex plot to smuggle Saadi Gadhafi to Mexico. Saadi Gadhafi, the third son
of former Libyan dictator Muammar Gadhafi, was the main contact for SNC-Lavalin
in Libya, where it had hundreds of millions of dollars in contracts.

As the courts close in on Mr. Roy, who appears to be still
in Canada, there might be forthcoming evidence from him that would shed some
light on the status of any alleged Gadhafi plot.

And by determining that Canadian rules of service trump the
Hague Service Convention when Canadian residents travel abroad – for whatever reason
– Mr. Aïssa will also be forced to participate. This, too, could result in more
information with regard SNC-Lavalin’s relationships with the Gadhafi clan
during the chaotic last days of the regime.

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